HR 1837: Preempting State Water Law to Prioritize Junior Water Rights?
Posted June 1, 2011
For more than one hundred years, under section 8 of the Reclamation Act of 1902, federal water projects generally complied with State law regarding the appropriation and use of water. In 1992, Congress and President Bush reaffirmed this federalism scheme in enacting the Central Valley Project Improvement Act. Yet despite this long history of deference to state water law, H.R. 1837, legislation introduced by Congressman Nunes and other San Joaquin Valley members, seeks to radically overturn and preempt state law, including the system of water rights under California law. If enacted, H.R. 1837 would likely lead to Westlands and other junior Central Valley Project (CVP) contractors effectively taking water from more senior water rights holders in the Sacramento Valley and San Joaquin River basin, in order to protect fisheries, the environment and water quality.
Here’s an example of how this might work, if H.R. 1837 is enacted into law.
Currently, permits issued by both the State and federal governments require the CVP and State Water Project (SWP) to release water in the fall of wetter years to mitigate the impacts of the CVP and SWP on endangered species. These protections, however, are not explicitly part of the 1994 Bay-Delta Accord, so under sections 108(a) and 108 (b)(1) of H.R. 1837, neither the state of California nor the federal government could require the CVP and SWP to provide these flows. However, under state and federal law, the State Water Resources Control Board is required to use the best available science to update its water quality control plan for the Bay-Delta. If the State Board included these Delta outflows in the updated water quality control plan (the Board included these flows in their 2010 report on flows to protect Public Trust resources), the State Water Resources Control Board would have to require farmers and other senior water rights holders in the Sacramento Valley, San Joaquin Valley, and the Delta to release water and/or not divert water to meet these flow objectives. So even though their water rights are more senior to the CVP and SWP, and even though the operations of the SWP and CVP largely created this impact on endangered species, other water rights holders would be responsible to mitigate the impacts of the CVP and SWP on salmon and other species. Thus, H.R. 1837 would turn California’s system of water rights on its head.
In order to fully understand the radical implications of this legislation, it’s critical to understand a little bit of the history of the Reclamation Act, and the attempts by Westlands to take water from other water users and the environment.
- In 1961, the State Water Resources Control Board issued Decision 990, which approved the federal Central Valley Project. Decision 990 relied on section 8 of the Reclamation Act of 1902 to impose conditions on the CVP’s water rights that were intended to protect senior water rights holders and fish and wildlife from harm caused by construction and operation of the Central Valley Project.
- In 1978, the U.S. Supreme Court held in California v. United States, 438 U.S. (1978), that under Section 8 of the Reclamation Act the State Water Resources Control Board could impose conditions on the “control, appropriation, use, or distribution of water” from the CVP, unless the conditions required by state law were inconsistent with clear Congressional directives regarding the CVP. The conditions on the Bureau’s permit at issue in that case were intended to protect downstream water rights holders, as well as fish and wildlife, from the effects of the construction, filling, and operation of New Melones Dam.
- In 1992, Congress and President George Bush enacted section 3406(b) of the Central Valley Project Improvement Act, which reaffirmed the requirement to operate the CVP to comply with state (and federal) laws, including water quality and water rights decisions of the State Water Resources Control Board.
- In 1993, in Westlands Water District vs. United States, 10 F.3d 667 (9th Cir., 1993), the Court of Appeal upheld the Bureau of Reclamation’s water allocations, despite the fact that the Bureau announced an initial allocation of 0% for Westlands, and 75% of contract amounts for the Exchange Contractors. The Court found that the San Luis Unit was constructed to “deliver surplus Delta water” to Westlands and other South of Delta contractors, and noted that the shortage provision in the Westlands contract applies “[i]n any year in which there may occur a shortage from any cause.”
- In 1998, NRDC v. Houston, 146 F.3d 1118 (9th Cir. 1998), the Court of Appeal held that under section 8 of the Reclamation Act of 1902 and provisions of the CVPIA, federal law did not preempt section 5937 of the California Fish and Game Code, as applied to the Bureau of Reclamation’s operation of Friant Dam, leading to the historic settlement of this litigation in 2006 and the enactment of the San Joaquin River Restoration Settlement Act in 2009.
- In 2003, in Westlands Water District v. United States, 337 F.3d 1092 (9th Cir. 2003), the Court of Appeal again denied Westlands’ claims for more water, holding that, “Under section 8 of the Reclamation Act of 1902 (43 U.S.C. § 383), the Bureau is required to comply with state law in acquiring water rights for the diversion and storage of water by the CVP,” and that Westlands’ claim to an equal allocation with the Exchange Contractors “ignores the Exchange Contractors priority to CVP water.”
Yet despite this history, and despite Westlands’ junior status, H.R. 1837 seeks to radically overturn more than 100 years of Reclamation law, and to eviscerate the requirement for the CVP to comply with State law pursuant to Section 8 of the Reclamation Act of 1902.
- Section 108(b)(1) of H.R. 1837 explicitly preempts California law and seeks to prevent the State from imposing scientifically justified restrictions on operations of the CVP to protect salmon and other threatened and endangered wildlife. Moreover, this section also prevents the State of California from enacting scientifically based protections that limit operations of the State Water Project – interfering in the State’s regulation of its own water project.
- Section 108(b)(1) may even apply more broadly than endangered species, preventing the State from limiting CVP and SWP operations to protect commercially valuable species, like fall run Chinook salmon, that are not listed under the Endangered Species Act, or from limiting CVP and SWP operations to prevent a species from being listed.
- Section 108(b)(2) preempts certain state wildlife laws.
- Sections 202 and 204(2) preempt state law, including the State’s Public Trust doctrine, as applied to the Friant Division of the CVP.
There would undoubtedly be years of litigation if this bill were to be enacted into law, and clever lawyers would argue whether the bill really accomplishes the breadth of state law preemption (and evisceration of fish and wildlife protection) that its authors seek. But there is little question that if it was implemented, it would lead to dramatic harm to California’s wildlife and the thousands of fishing jobs that depend on healthy fisheries. The protections from the Bay Delta Accord (a 3 year agreement covering 1995 to 1997) that this bill would substitute are 17 years out of date, substantially weaker than existing requirements, and are not based on current science; and as my colleagues at the Environmental Defense Fund have noted, H.R. 1837 is intended to allow dramatically higher level of water exports than actually occurred under the Bay-Delta Accord from 1994-1997.
H.R. 1837 effectively guarantees that the CVP and SWP need not comply with the best available science; the bill would prohibit the state and Feds from imposing scientifically justified protections for the Bay-Delta that mitigate the impacts of the CVP and SWP. As salmon and other fish species continued to decline under H.R. 1837, the end result would likely be that existing senior water rights holders would have to give up water in order to protect the Bay-Delta, salmon and other fish species. Senior water rights holders under state law would be considered junior under federal law.
For 100 years, deference to state law has been the foundation of federal water policy. H.R. 1837 would demolish this foundation. If it were to become law, the long-term implications for California and the rest of the West could be far-reaching, disruptive and damaging to water users and the environment alike.
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